33 Conn. App. 632 | Conn. App. Ct. | 1994
The respondent mother appeals from the judgment of the trial court adjudicating her child neglected and committing the child to the custody of the department of children and youth services (DCYS).
On March 7,1991, the mother claimed that the father had sexually abused the child during an unsupervised visit. The mother took the child to Kimberly Mailloux, a child advocate and certified sexual assault counselor employed by the Northeast Connecticut Sexual Assault Crisis Service, and Morton Glasser, a physician in general and family practice, for examination and evaluation. The police, DCYS and Martha Roberts, a counselor and clinician employed by United Services who became the child’s therapist, were also notified. The father’s visitation rights were modified to allow only supervised visitation until the end of January, 1992, when the father was allowed to resume unsupervised visits for a few hours a week.
On June 6,1991, an attorney for the minor child filed a petition seeking a determination of neglect pursuant to General Statutes § 46b-129
On February 21, 1992, after the first full day of the child’s unsupervised visit with the father, the mother again reported that the father had sexually abused the child. The mother again took the child to Mailloux and Glasser for evaluation and examination, and the police and DCYS were informed. Again, the father’s visitation rights were modified to supervised visitation only.
On April 21, 1992, the hearing commenced on the June 6,1991 neglect petition. At that hearing, DCYS withdrew its motion to amend the petition and the child’s attorney requested permission from the trial court to amend the neglect petition. The court granted the motion to amend and the child’s attorney informed the court that the amended petition would be filed on April 23,1992. The court then asked the child’s attorney to call her first witness. The mother objected to the commencement of evidence prior to the filing of the amended petition. The trial court overruled the objection and commenced trial. The child’s attorney did not file the amended petition on April 23, 1992.
On May 26, 1992, at the mother’s request, her then prospective mother-in-law took the child to DCYS for the father’s regularly scheduled visit. Diane Sinapi, a DCYS social worker, informed the prospective mother-in-law that the child would be released only to her mother after the visitation. The mother, at that time, had accompanied her fiance to Putnam Superior Court for proceedings concerning her fiance’s marital status.
When the mother failed to come to the DCYS office to pick up the child before the office closed, Sinapi released the child to the father and the child’s paternal grandmother. The grandmother drove to her home
On July 17, 1992, the attorney for the child filed an amended petition for a determination of neglect alleging that the child was neglected, abused, denied proper care and attention, permitted to live under conditions, circumstances or associations injurious to her well-being and was uncared for in that her home could not provide the specialized care that her physical, emotional and mental condition'required. The amended petition had matters stricken and a new amended petition was filed on July 21,1992. The new petition was premised on allegations that the father had sexually abused the child, and, in the event that the allegations of sexual abuse by the father were not true, that the mother was abusing the child by intentionally or otherwise fabricating false claims of sexual abuse, thereby exposing the child to unnecessary and intrusive examinations. The mother objected to the amendment because the trial was in an advanced stage. The trial court overruled the objection and stated that Practice Book § 1029 (now § 1055.1 [3])
I
The mother claims that the trial court improperly (1) commenced trial prior to the filing of the amended petition identifying alleged misconduct on her part, in light of the court’s ruling that such amendment was to be allowed, (2) permitted evidence relative to acts of her misconduct prior to the filing of the amended petition, and (3) allowed a midtrial amendment to the neglect petition. The mother asserts that the trial court violated her right to due process of law by failing to give her adequate notice of the claims directed against her. We agree.
“The State has a parens patriae interest in preserving and promoting the welfare of the child, Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) . . . .” (Internal quotation marks omitted.) In re Steven G., 210 Conn. 435, 440, 556 A.2d 131 (1989). We must, therefore, strike a balance between the informality and flexibility that characterize juvenile proceedings with the requirement of fun
In compliance with the requirements of due process, our rules require that the neglect petition set forth with “reasonable particularity” specific allegations that have resulted in the neglect of the child. Practice Book § 1027 (4) (now § 1040.1 [l]).
The amendment was first filed on July 17,1992, after a significant amount of evidence had been produced at trial.
The child’s attorney claimed during oral argument that the mother had waived her due process rights by
II
Although our disposition of the previous issue requires a new trial, we address the issue of whether the trial court improperly ordered the mother to undergo a psychological evaluation on April 21, 1992, and then allowed the report of the examination to be admitted at trial because it is likely to recur at retrial.
Certain additional facts are necessary for a proper resolution of this issue. The mother alleged sexual abuse of the child by the father on March 7, 1991. After the child’s attorney filed the petition for a determination of neglect on June 6,1991, the court ordered that psy
A
General Statutes § 46b-129 (c)
The requirement of a hearing and finding by the court is directory. It does not relate to a matter of substance, but is designed to secure order in the proceedings. Its purpose is to afford the objecting party a procedure for challenging a court ordered examination. If the party elects not to object, the court is not required to hold a hearing as a matter of law. Therefore, by her failure to object to the ordering of the psychological evaluations, the mother waived her right to do so on appeal.
The mother next claims that ordering the evaluation constituted plain error. Practice Book § 4185.
Ill
Although the disposition of the issue in part I requires a new trial, we address the issue of the trial court’s denial of the mother’s request for blood testing since it is likely to recur on retrial.
“General Statutes § 46b-168 provides that the court ‘may’ order blood tests upon a motion by any party. Thus, the order is discretionary.” Barlow v. Guerrera, 9 Conn. App. 431, 432, 519 A.2d 623 (1987). We must, therefore, determine if the trial court abused its discretion. Id.
The trial court based the denial of the blood tests on estoppel. “There are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to his injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist. . . .” (Citations omitted; internal quotation marks omitted.) Remkiewicz v. Remkiewicz, supra, 119. Both elements are met in this case. The mother claimed that the respondent father was the actual father during the divorce proceedings. This claim was calculated to have the respondent father believe that he was the actual father of the child. As a consequence, the father was required to pay support payments to the mother, which he would not have been required to do had the mother not claimed that he was the actual father. The mother was estopped from claiming that the respon
The judgment is reversed in part and the case is remanded for a new trial as to the respondent mother only.
In this opinion the other judges concurred.
The department of children and youth services was renamed the department of children and families. Public Acts 1993, No. 93-91, § 1.
The respondent mother also claims that the trial court improperly (1) denied her request for a continuance pending completion of the evaluation ordered on April 21,1992, (2) granted an order of temporary custody, (3) denied her motion to dismiss the order of temporary custody, (4) relied on opinion evidence of the court-appointed evaluator as to the credibility of the parties and the child, (5) accepted, after opening her case-in-chief, a stipulation offered by counsel and closed the proceedings in spite of her statements to the court that she desired new counsel and wanted to offer additional evidence, (6) denied her motion for recusal based on receipt of ex parte communications, and (7) denied her the right to effective assist
General Statutes § 46b-129 (a) provides in pertinent part: “[A] child or his representative or attorney . . . having information that a child or youth is neglected, uncared-for or dependent, may file with the superior court which has venue over such matter a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected, uncared-for, or dependent, within the meaning of section 46b-120, the name, date of birth, sex, and residence of the child or youth, the name and residence of his parents or guardian, and praying for appropriate action by the court in conformity with the provisions of this chapter. . . .”
At the time the petition was filed, Practice Book § 1029 provided: “A petition may be amended at any time by the court on its own motion or in response to the motion of any interested party prior to the final adjudication of delinquency or neglect. When an amendment has been so ordered, a continuance shall be granted whenever the court finds that the new allegations in the petition, as amended, justify the need for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances.”
That section became Practice Book § 1055.1 (3) effective October 11,1993.
While Gault does not specifically address midtrial amendments to allegations in a neglect proceeding, “it does provide us with a basic standard of essential due process and fair treatment.” In re Steven G., 14 Conn. App. 205, 209, 540 A.2d 107 (1988), aff’d, 210 Conn. 435, 556 A.2d 131 (1989). “As the court observed in Gault, ‘juvenile Court history has . . . demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.’ In re Gault, supra, 18 . . . .” In re Tyvonne M., 211 Conn. 151, 164, 558 A.2d 661 (1989).
At the time the petition was filed in this case, Practice Book § 1027 (4) provided: “If jurisdiction over the child is alleged to arise out of neglect,
See footnote 4.
The trial court held hearings on this matter on five occasions before the amendment was first brought to the attention of the court. The court held seven more hearings after the amendment.
The mother called witnesses to respond to the single issue of the order for temporary custody. The court and the parties agreed that the evidence from the issue of temporary custody would be used as part of the issue of the neglect petition.
The transcript reflects the following:
“The Court: All right. It’s still understood by all parties and counsel that all of this evidence will be used as part of the case-in-chief and I’m trying this case together with the temporary custody application. Is that everybody’s agreement and understanding?
“All: Yes, Your Honor.”
The transcript reflects the following colloquy among the parties and the court:
“The Court: All right. Fine. Now any objection to Dr. Mantell having access to the seven professionals and their reports? Attorney McKenna?
“[Assistant Attorney General]: No objection, Your Honor.
“The Court: Attorney Chmielecki?
“[Counsel for minor child]: None whatsoever, Your Honor.
“The Court: Attorney Collins?
“[Counsel for respondent father]: No, Your Honor.
“The Court: Attorney Tuller?
“[Counsel for respondent mother]: No, Your Honor.
“The Court: All right. So ordered.”
The transcript reveals the following colloquy among the parties and the court:
“[Counsel for minor child]: Doctor, I would show you this document and ask you please to identify it.
“[Mantell]: Yes, this is most the recent study that I prepared for the court. It’s 117 pages long and it’s dated July 16, 1992.
“[Counsel for minor child]: And that is your signature on the last page of the document?
*642 “[Mantell]: Yes. it is.
“[Counsel for minor child]: Your Honor, I would request that this be admitted as a full exhibit marked Petitioner’s No. [9],
* ** *
“The Court: Counsel?
“[Assistant Attorney General]: No objection.
“[Counsel for respondent father]: No objection.
“The Court: Attorney Thompson?
“[Counsel for respondent mother]: I have no objection, Your Honor.”
The mother also claims that the trial court denied her due process of law because she was unaware of the allegations brought against her in the amended petition. We do not review this issue because the mother did not adequately preserve the issue for review. The mother did not object when the evaluation was ordered or to the admission of the report when she was aware of the claims in the amended petition. See State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986); Budlong v. Nadeau, 30 Conn. App. 61, 63-64, 619 A.2d 4, cert. denied, 225 Conn. 909, 621 A.2d 290 (1993).
General Statutes § 46b-129 (c) provides: “When a petition is filed in said court for the commitment of a child or youth, the commissioner of children and youth services shall make a thorough investigation of the case and shall cause to be made a thorough physical and mental examination of the child or youth if requested by the court. The court after hearing on the petition and upon a finding that the physical or mental ability of a parent or guardian to care for the child or youth before the court is at issue may order a thorough physical or mental examination, or both, of the parent or guardian whose competency is in question. The expenses incurred in making such physical and mental examinations shall be paid as costs of commitment are paid.”
Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”
General Statutes § 46b-168 (a) provides: “In any proceeding in which a question of paternity is an issue, the court or a family support magistrate, on motion of any party, may order the mother, her child and the putative father or the husband of the mother to submit to one or more blood grouping tests, to be made by a qualified physician or other qualified person, designated by the court, to determine whether or not the putative father or the husband of the mother can be excluded as being the father of the child. The results of such tests shall be admissible in evidence only in cases where such results establish definite exclusion of the putative father or such husband as such father.”
General Statutes § 46b-84 (a) provides: “Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance.”